EU must learn lessons of Rocco affair

By Stanley Crossick

Date: 10/11/04

ONLY two weeks ago the European Union was in crisis. José Manuel Barroso, president-elect of the European Commission, could not obtain sufficient support from the European Parliament with Rocco Buttiglione as a member of his team.

The Italian Prime Minister Silvio Berlusconi had publicly declared that he would not withdraw Buttiglione's nomination. There was stalemate in a clash that started off as a trial of strength between the Parliament and the Commission but had become a stand-off between Parliament and the European Council.

It could have meant the new Commission not taking office for many weeks, paralyzing much of its work. But, hours later, Berlusconi changed his mind. A few days after that, Latvia withdrew its nominee, Ingrida Udre, who had also been strongly criticized by Parliament.

The reshuffled Commission is expected to be approved comfortably by Parliament on 18 November with Italy's Franco Frattini taking over the portfolio for justice, freedom and security and Latvia's Andris Piebalgs taking over energy from Hungary's László Kovács, who switches to the tax dossier. Few doubt that the Barroso Commission will be in place by 1 December at the latest. So what happened and what lessons can be learned from the experience?

By happy coincidence, EU leaders met in Rome just two days after Barroso ducked the vote at the Parliament. They had long been scheduled to sign the new constitution. The impasse was resolved over dinner with an unexpected and uncharacteristic climb-down by Berlusconi. It is unclear what brought about his public and unilateral volte-face, but he was probably influenced by four factors.

First, he was in a minority and was not getting much support from his counterparts in the European Council. Second, he did not want to make life yet more difficult for Barroso who had been his choice for Commission president. Third, the Italian prime minister may have decided that the episode would play out badly for him in domestic politics, although some believe that it would have suited him to keep his rival Romano Prodi in Brussels for as long as possible. Fourth, he knew that Buttiglione would not be the only commissioner dropped, which improved the problems of presentation.

Berlusconi could, in any event, have been overruled by the Council. If Italy refused to nominate a candidate acceptable to Barroso, the Council could still have adopted a list of proposed Commissioners by qualified majority under Article 214 of the EU's treaty.

Since the Italian prime minister was the author of his own misfortune, the European Court of Justice would be unlikely to allow Italy to block the appointment of a new Commission. Nor would it, in such circumstances, invoke the provisions of Article 213 that the "Commission must include at least one national from each of the member states".

Another solution, messy but legal, would have been for Parliament to approve a Commission that included Buttiglione on the basis that Barroso would subsequently require him to resign under Article 217.

Such drastic tactics have not so far been within the culture of the EU but would have provided ways of overcoming the impasse, if absolutely necessary.

In the event, Berlusconi's climb-down opened the way for Barroso to announce his revised line up at the following week's European Council in Brussels.

At least five lessons can be learned from the Rocco Buttiglione episode.

• Barroso should have followed in his predecessor's footsteps and insisted on influencing the selection of his team, as is his legal right under Article 214 of the EU's treaty: nomination of Commissioners by member states must be "by common accord with the nominee for President";
• the Commission must take Parliament more seriously and understand its mood. Barroso failed to do this as had Jacques Santer before him;
• of solidarity comes into play, often in a strange way;
• never be underestimated; in this case two scheduled meetings of the EU leaders in successive weeks; and,
• should, wherever possible, avoid forecasting. As the then British prime minister Harold Wilson famously remarked, a week is a long time in politics.

The poor drafting of the treaty is to be deplored. Article 214 is ambiguous. The treaty is silent as to what happens if Parliament does not approve the college proposed by the Council. The Court of Justice may yet need to rule on the validity of Commission acts adopted by the Prodi Commission after 31 October.

A repetition of this problem would be impossible if the intergovernmental conference that negotiated the new treaty had accepted the proposal of the drafting convention that the Commission president choose his or her commissioners from three candidates nominated by each member state. The next Commission president-elect would be well advised to insist on the nomination of commissioners who are likely to be acceptable to Parliament. Whether Parliament will wait until 2009 or will seek to force the individual resignation or dismissal of a commissioner is still to be seen.

The Buttiglione affair is a victory for democracy and will help the Parliament to gain public legitimacy. The Commission also gains in legitimacy, which is now clearly conferred upon it by Parliament as well as by the member states. The member states are the institutional losers. And most importantly, the battle has been played out in the media in a way that EU citizens understand and to which they can relate.

• Stanley Crossick, founding chairman of the European Policy Centre, writes here in a personal capacity.

In an analysis feature the author, who is founding chairman of the European Policy Centre, comments on the withdrawal of the first proposal for a team of Commissioners by incoming President Barroso which was forced by the European Parliament. After the Italian Government withdrew its controversial candidate Rocco Buttiglione, Barroso is to present a reshuffled team.

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